Rejfek v McElroy

IN THE MEDICAL TRIBUNAL CONSTITUTED UNDER SECTION 146 OF THE MEDICAL PRACTICE ACT 1992 AS AMENDED.

Professor W.E. Glover AO Dr. Saw-Hooi Toh Mr. David Jackett

1 - Complaint: Pursuant to Section 51 (1) of the Medical Practice Act 1992 as amended, the Health Care Complaints Commission has complained that Dr. Darwin Rivera, a medical practitioner registered under such Act "Has been guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s. 36 and s. 37 of the Act in that the practitioner:-

(i) has demonstrated a lack of adequate knowledge, skill, judgment or care in the practice of medicine and/or (ii) has been guilty of improper and unethical conduct relating to the practice of medicine."

Particulars of such complaint were supplied as follows:- "1) On February 2000 during a professional consultation with a female patient, Patient A, in St. Vincent's Hospital Sydney, the practitioner:

(a) performed an examination of Patient A's genital area without proper and sufficient clinical indications for doing so; (b) failed to seek and obtain Patient A's prior verbal consent to the examination; (c) failed to adhere to standard infection control requirements in the conduct of the examination namely wearing gloves and washing his hands before and immediately after the examination; (d) failed to arrange for a member of nursing staff to be present during the examination as required by the Hospital policies; (e) inappropriately held Patient A's hand after the examination.

2. In February 2000 the practitioner failed to make a medical record of his examination of Patient A contrary to Schedule 2 of the Medical Practice Regulation 1998. 3) On or about 17 September 2000 during a professional consultation with a female patient, Patient B, in Wagga Wagga Base Hospital, the practitioner:

(a) asked the patient to remove her underwear during a physical examination without proper and sufficient clinical indications for doing so; (b) visually examined Patient B's genital area without proper and clinical indications for doing so.

4. On or about 18 September 2000 during a professional consultation with Patient B in Wagga Wagga Base Hospital the practitioner:

(a) asked Patient B to remove her underwear during a physical examination without proper and sufficient clinical indications for doing so; (b) visually examined Patient B's genital area without proper and clinical indications for doing so; (c) inappropriately rubbed Patient B's anus and clitoris; (d) inappropriately massaged Patient B's legs; (e) failed to adhere to standard infection control requirements in the conduct of his examination of Patient B, namely wearing gloves and washing his hands immediately before and after the examination.

5. Between 12 September 2000 and 19 September 2000 the practitioner failed to make a medical record of all examinations of Patient B contrary to Schedule 2 of the Medical Practice Regulation 1998."

In determining whether the complaint has been established, the Tribunal has approached the matter on the basis that the complainant bears the onus of proving the complaint to the Tribunal's reasonable satisfaction on the balance of probabilities. See Rejfek v ~Elroy (1965) 112 CLR 517 at 521 and Bannister v Walton (1993) 30 NSWLR 699 at 711-712 per Mahoney JA.

Of course in applying such standard of reasonable satisfaction on the balance of probabilities the Tribunal has had regard to the gravity and importance of the matters to be determined by it in accordance with the principles referred to in Briginshaw v Briginshaw (1938) 60 CLR 336 at 360 to 363. Thus the Tribunal has applied the words of Sir Owen Dixon at pages 361 - 362:-

'Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of the occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. '

Dr Darwin Rivera was born on 18 April 1962 in Peru. He is thus now aged 42 years. He graduated in 1988 with the degree of Bachelor in Medicine from the National University "Federico Villarreal" at Lima Peru.

From July 1987 to August 1988 he served as intern doctor at the Peruvian Institute of Social Security. During his internship he did a three month rotation in gynaecology and obstetrics during which he often conducted vaginal examinations of women. These examinations were conducted in hospital without a chaperone being present.

Thereafter Dr. Rivera worked in Peru first as a doctor in a rural health service, then as a doctor for a company engaged in flower production and then as a doctor in a rural area for the Ministry of Health.

Because of political troubles in Peru Dr. Rivera moved to Costa Rica in April 1991. He was unable to work as a doctor there but did assist as a volunteer providing medical aid to victims of earthquakes in Costa Rica. Subsequently, he worked for the Pan American Health Organization, which is part of the World Health Organization, on programs for the prevention and control of cholera and malaria in Costa Rica.

In June 1992 with his wife and two children he emigrated to Australia. On arrival in Australia he knew very little English and undertook a TAFE English language course which he passed in approximately 1994.

Subsequent to passing such course he undertook the multiple choice preliminary test for registration as a medical practitioner conducted by the Australian Medical Council. After approximately four attempts he passed such test and then undertook a three month bridging clinical course at Liverpool Hospital. He later passed the clinical examination for medical registration in 1999.

On 15 December 1999 Dr. Rivera was conditionally registered as a medical practitioner. He was required under such conditional registration to undertake 12 months of supervised hospital training commencing on 10 January 2000.

Allegations re Conduct as St. Vincent's Hospital in February 2000.

Patient A was born on 28 October 1939 and was thus aged 60 years when she was admitted to St. Vincent's Hospital Sydney on 11 February 2000 for a left hip replacement. Patient A had given birth to six children and had previously had a hysterectomy. Over her life she had experienced numerous vaginal examinations and had trained as a nurse for three years.

At the time of her admission to St. Vincent's Hospital on 11 February 2000 Patient A was under the care of Dr. F. Robertson, orthopaedic surgeon. Dr. Rivera who had been working as an intern at such hospital for approximately one month, was also involved in her care.

Whilst Patient A was in St. Vincent's Hospital Dr. Rivera visited her every day and sometimes twice a day. On 18 February 2000 which was the day before Patient A was discharged he visited her. She was at that time in a ward with four other patients.

Patient A had been taking hormone replacement therapy for 10 years. She had ceased to do so on medical advice about 6 weeks prior to her left hip operation. When Dr. Rivera visited Patient A on 18 February 2000 she sought his advice as to whether she should resume such therapy. Dr. Rivera told her about the advantages and disadvantages of hormone replacement therapy and mentioned vaginal dryness. That interested Patient A as she was proposing to remarry and in fact did so on 29 April 2000. She told Dr. Rivera that she was getting married and she suggested to Dr. Rivera that maybe she should stay on such therapy because of its assistance with combating vaginal dryness. During this conversation with Dr. Rivera Patient A had been sitting on the side of her bed. Dr. Rivera then drew the curtains around her bed leaving a gap of approximately 18 inches. He asked her to lie on her back which she did. Dr. Rivera then went over to the wash basin, and got two gloves from a dispenser near such basin. The patient noticed that he did not wash his hands. Dr. Rivera then came back to the patient and asked her to raise her legs which she did. He then placed the gloves on the bed, raised her nightie and examined her vagina.

Patient A alleges that in conducting such examination Dr. Rivera parted the labia of her vagina with his right hand which was ungloved. He then inspected her vagina and said "That looks okay" and pulled her nightie down. Dr. Rivera then took Patient A's hand and squeezed it approximately 3 or 4 times.

Patient A was embarrassed by the squeezing of her hand and although she conceded Dr. Rivera kept talking to her whilst he squeezed her hand she could not recall what he said. She pulled her hand away from his and pulled herself up on the pillows to get away from Dr. Rivera who finished talking, picked up the gloves off the bed, opened the curtains, walked to the basin threw the gloves in the bin and walked out without washing his hands.

Feeling uncomfortable about such events Patient A intended to raise the matter with Dr. Robertson when he visited her the next day prior to her discharge. However a nursing sister walked in and Patient A didn't mention her concerns to Dr. Robertson at that time.

Patient A asserts that she was never asked for her consent to the vaginal examination conducted by Dr. Rivera although she conceded in evidence that from the time he pulled the curtains she knew Dr. Rivera was going to examine either her breasts or her vagina and that from the time he asked her to part her legs she knew Dr Rivera was going to examine her vagina. Patient A also conceded that she was content to consent to a vaginal examination.

A few days after her discharge from hospital on 19 February 2000 Patient A telephoned Dr. Robertson and complained about Dr. Rivera's actions. Following such complaint Dr. Robertson contacted the clinical superintendent of St. Vincent's Hospital Ms. Milne and a meeting was convened at 1 p.m. on 24 February 2000. Dr. Rivera was present at that meeting as were Dr. Robertson, Ms. Milne, and Dr. Finckh who was at that time the Director of Clinical Training at St. Vincent's Hospital. The allegations which Patient A had made were put to Dr. Rivera and he made replies to them. Detailed notes of the meeting were made by Ms. Milne and Dr. Finckh. Those notes were later typed and copies of them which Ms. Milne, Drs. Robertson and Finckh considered constituted true and accurate accounts of the meeting were in evidence before the Tribunal (See Ex. 5.1 and 5.2).

From such notes and Dr. Rivera's evidence at T. 271 - 272 it would appear that Dr. Rivera was informed: (a) that all physical examinations of patients should be justifiable and that the superficial examination he had conducted would not have given an appropriate indication of whether Patient A had vaginal dryness. (b) That the reason for performing a gynaecological examination should be explained to the patient and the consent of the patient obtained prior to proceeding; (c) That a chaperone (nurse) should be present at all gynaecological examinations; (d) That gloves should always be worn when body cavities were examined; and (e) That hand washing should occur after all such examinations. It would seem from the notes that the persons present were concerned that Dr. Rivera's past practice in Peru may have contributed to his actions in relation to Patient A. He was strongly informed of the seriousness of the episode and that such actions would not be tolerated in the future. However it was decided that no further disciplinary actions would be taken against Dr: Rivera.

In his statement to the Tribunal dated 27/10/04 (Ex A.l) Dr. Rivera asserted:- (i) that he considered that an inspection of Patient A's external genital area for cracks and dryness was appropriate; (ii) that he did ask for the patient's consent to examine her vagina and believed that she had given such consent; (iii) that he had not worn gloves as he did not manually examine the patients genitalia; (iv) that he did not have a chaperone present when conducting the examination and despite the patient's age now realised he should have done so; (v) that he had patted the patient's hand after the examination but did this as a means of reassuring the patient and not for any improper purpose; and (vi) that he had not made any medical record of his examination as there were no positive clinical findings.

In his evidence before the Tribunal Dr. Rivera repeated his denial of touching Patient A's labia and also asserted that at the meeting on 24 February 2000 he had denied touching such labia (T. 248.40 to 249.30). Dr. Rivera also claimed in evidence that he had washed his hands in the nurses' therapeutic rooms after examining Patient A (T. 269.10 to 44) although he conceded that he had told the meeting on 24 February 2000 that he had not washed his hands after examining Patient A (T. 269.55 to 270.04). His explanation for this difference was that two or three days after the meeting on 24 February 2000 he remembered washing his hands (T. 270.15) but he conceded that he had not informed the members of the committee of this (T. 270.26) or Dr. Finckh who he had seen on approximately three occasions after the meeting of 24 February 2000 (T. 292.03).

Dr. Rivera also denied in evidence holding or stroking the patient's hand (T. 267.45) but admitted he had patted such hand (T. 267.47) and that he had not told the committee on 24 February 2000 that he had not stroked her hand.

The Tribunal also notes that Dr. Rivera's evidence as to not touching Patient A's labia and as to washing his hands in the nurses therapeutic room is consistent with his statement attached to his solicitor's letter dated 10 January 2001 (Ex 2.9).

Allegations re Conduct at Wagga Wagga Base Hospital on 17 and 18 September 2000.

Patient B was born on 21 October 1949 and was thus aged 50 years when she was admitted to Wagga Wagga Base Hospital on 12 September 2000 with a deep vein thrombosis. Over her life she had given birth to three children and had had vaginal examinations from time to time.

Some weeks prior to her admission on 12 September 2000 Patient B had had an operation performed to remove a blood clot.

At the time of her admission on 12 September 2000 Patient B was under the care of Dr. Gamble. Dr. Rivera was working as an intern at Wagga Wagga Base Hospital on secondment from St. Vincent's Hospital Sydney and was also involved in her care.

Whilst Patient B was at Wagga Wagga Base Hospital Dr. Rivera used to visit her at least twice a day and sometimes up to four or five times a day. Usually he did so with the surgical registrar but sometimes he saw her by himself.

After some days in the hospital Patient B who had been in ward 5 room 7 was moved to ward 3 room 13.

Patient B alleges that between 4 and 5 p.m. on Sunday 17 September 2000 Dr. Rivera visited her by himself. He pulled the curtains around the bed and felt her left calf. He then had her pull her knickers to one side and felt around her abdomen, her groin and the top of her leg. As Patient B was holding her knickers Dr. Rivera was pushing them down and she asked him if he wished her to take them off. Dr. Rivera replied in the affirmative and Patient B then did so.

At this time Patient B was lying on her back. Dr. Rivera then put his hand on her left thigh and pulled on it. Patient B believed he wanted her to spread her legs and she therefore moved her left leg aside. Dr. Rivera then felt around her abdomen and Patient B heard the curtain pull back a little. She saw a head and Dr. Rivera turned around and glared at the person who backed away and shut the curtain. Patient B formed the belief from the expression on Dr. Rivera's face that he was angry at the interruption. After the person had disappeared Dr. Rivera asked Patient B to sit up and he examined her chest with a stethoscope. He said "that's fine" (T.47.16) and then left. Patient B noticed that Dr. Rivera took no notes of the examination and wore no gloves. On 18 September 2000 at some time after 4 p.m. Dr. Rivera visited Patient B by himself. When he arrived he had no gloves with him. He closed the curtains. He did not ask Patient B whether he could examine her but she assumed he was going to do so. Dr. Rivera took out the cannula in her left wrist. He asked her if she had any itching or burning in the genital area. That had never been a problem for Patient B and she replied in the negative. He then asked how she was going and she complained that her left calf was really aching and that the more she walked the more it hurt.

Dr. Rivera then massaged Patient B's leg from the bottom of the calf up the thigh to the groin and started tugging at the side of Patient B's knickers. Patient B asked him whether he wanted her knickers off and he said "Yes". She then removed her knickers and put them on the bed. She noticed that Dr. Rivera glanced at them. Patient B then lay back on the bed and Dr. Rivera looked at her groin. He then asked the patient if she had anything else wrong and she replied that her back was sore.

Dr. Rivera then said he would rub Patient B's back and told her to lie on her stomach. This Patient B did and Dr. Rivera rubbed her back with a round massaging motion. Patient B then felt Dr. Rivera's finger on her anus and another beside her clitoris and Dr. Rivera then started to rub beside her clitoris. This lasted about 30 seconds. She felt shocked and stunned. Patient B then got a cramp in her back and rolled over. As she did so she saw Dr. Rivera sniff his finger. He was not wearing gloves. The patient then put her knickers back on. Dr. Rivera asked "Are you alright?" to which the patient replied "Yes". Dr. Rivera then left.

Approximately one hour to an hour and a half later a nurse was feeding the old lady in the next bed. It was the same nurse who had put her head through the curtains on the previous day. Patient B asked the nurse if she knew the name of the doctor. The nurse asked "Why?" and Patient B replied that she didn't think his methods were above board. There was nothing else said.

The following day 19 September 2000 Dr. Rivera visited Patient B again and examined her. He asked her whether she had any questions about her treatment. Patient B who was frightened and wanted to get out of the hospital replied "No".

Subsequently on the same day Dr. Gamble and the surgical registrar saw Patient B who was distressed and upset. Dr. Rivera was also present. Dr. Gamble asked Patient B whether she had any complaints about her treatment or against the hospital. Patient B replied "No". She claimed she said this because she was afraid, Dr. Rivera was there and she just wanted to go home. She was also seen by a social worker on the day of her discharge but again made no complaint to such person.

Patient B was discharged later that day (19 September 2000) and on 20 September 2000 saw her general medical practitioner Dr. Brendan Pitts. She complained to Dr. Pitts that a doctor at the hospital had molested her. The next day (21 September 2000) Dr. Pitts telephoned Dr. Paul Curtis the medical superintendent of Wagga Wagga Base Hospital and told him of Patient B's complaint. Dr. Curtis telephoned Patient B on 22 September 2000 to discuss the details of her complaint. Dr. Curtis took handwritten notes of those conversations which notes he later caused to be typed. Both the handwritten and typed notes were before the Tribunal as annexures B and C to Dr. Curtis's affidavit sworn 12 October 2004 (Ex 5.3).

Dr. Curtis arranged a meeting at Wagga Wagga Base Hospital at 1.30 pm on 27 September 2000. Present at such meeting were Dr. Curtis, Dr. Rivera and Mr. G. Sloane who was the general manager of that hospital. Dr. Curtis also made handwritten notes of that meeting which he later had typed. Such handwritten and typed notes were before the Tribunal as annexures D and E to Dr. Curtis's affidavit (Ex 5.3).

From those notes it appears that Dr. Rivera at such meeting agreed that he could have seen Patient B at approximately 4.30 p.m. on Monday 18 September 2000, and conceded that he did not make an entry in her notes for every visit which he made to Patient B because it was not practical. He also denied asking the patient to remove her underpants, specifically denied touching her genital region and conceded that he didn't wear gloves during the examination and that he should have done so when examining a patient's groin. Dr. Rivera also stated that he had washed his hands in the sink near the nurse's station.

On 4 October 2000 Dr. Curtis telephoned Patient B and informed her that Dr. Rivera denied the allegations and that to take the matter further he would need a formal statement from her. A meeting was arranged for 6 October 2000.

At approximately 9 a.m. on 6 October 2000 there was a meeting at the Wagga Wagga Base Hospital between Patient B, Dr. Curtis, Mr. Graeme Sloane and Ms. Julie Foster who was the hospital's sexual assault services coordinator. Dr. Curtis again made handwritten notes of such meeting which notes were subsequently typed. Those notes are annexures G and H to his affidavit (Ex 5.3) and inter alia reveal that Patient B was going to report the matter to the police. Later on 6 October 2000 at approximately 2 p.m. there was a further meeting between Dr. Curtis, Mr. Sloane, Dr. Rivera and Dr. Karush Hagigi regarding Patient B's complaint.

Dr. Curtis's handwritten notes of that meeting are annexure I to his affidavit (Ex 5.3). Those notes indicate that Dr. Rivera denied taking Patient B's underwear off on "either day".

Following such meeting Dr. Curtis prepared a statement for Patient B to sign in relation to her complaint. Such statement was based on the notes Dr. Curtis had taken at the meeting with Patient B on 6 October 2000.

On 16 October 2000 Patient B made a detailed statement to the NSW Police at Wagga Wagga Police Station (Ex 3.5). Subsequently on 25 October 2000 Patient B met Dr. Curtis, Ms. Sloane and Ms. Foster, reviewed the draft statement of complaint prepared by Dr. Curtis and signed it. A copy of such statement is Annexure J to the affidavit of Dr Curtis (Ex 5.3).

In his statement to the Tribunal dated 27/10/2004 (Ex A.l) Dr. Rivera:- (i) stated that he was not on duty at the hospital on Sunday 17 September 2000; that on that date he had swapped his shift with Dr. Queenie Lo as his family had travelled down to Wagga to visit him for the weekend; (ii) denied that he asked Patient B to remove her underwear for any examination either on that or any other day; (iii) agreed that he had seen Patient B on 18 September 2000 with the registrar and that later the same day he had examined Patient B by himself; (iv) denied examining Patient B's vagina or anus on 18 September 2000; (v) denied that he placed a finger on Patient B's anus or next to her clitoris on 18 September 2000; (vi) denied that he had massaged Patient B's back or her legs; (vii) admitted that he compressed and palpated Patient B's leg from the calf to the inguinal area on 18 September 2000 and that he had not used gloves for such examination; (viii) stated that he normally washed his hands in the nurses' therapeutic room; and (ix) conceded that he did not make entries in the notes of some examinations where there were no positive findings on those examinations. In his evidence before the Tribunal Dr. Rivera denied that he worked at or went to Wagga Wagga Base Hospital on 17 September 2000 (T. 210.37 to 41). He claimed that he had originally been rostered to work on both 16 and 17 September 2000 but had changed his roster with another intern Dr. Queenie Lo (T. 210.57 to 211. 07). However under cross examination he conceded that the change was made at the request of Dr. Lo (T. 238.55), that his family had arrived to stay with him in Wagga a few days before and that paragraph 19 of his statement dated 27 October 2004 (exhibit A.1 ) (which was to the effect that he had changed his roster because his family had travelled to Wagga to visit him for the weekend) was incorrect ( T. 239.20 to 30).

Dr. Rivera also denied when giving evidence ever examining Patient B without her underpants on and specifically denied placing his hand, finger or thumb on her anus or on her vagina ( T. 210.20 to 35). In cross examination Dr. Rivera denied lifting his hand and smelling his finger after allegedly placing his finger on Patient B's anus and clitoris (T. 333.17 to 25). He also denied having asked Patient B to remove her underwear ( T. 333.10), agreed that there would have been no justification for doing so and that to have done so would have been completely improper (T. 332.37 to 42). Dr. Rivera further conceded that he had not made notes of his examination of Patient B on 18 September 2000 (T. 329.10 to 39), and that his failure to do so was a gross error on his part and not justifiable (T. 329.45).

Determination of the Facts re Alleged Conduct at St. Vincent's Hospital in February 2000.

The Tribunal was much impressed by Patient A. She was clear and straightforward whilst giving her evidence and was not shaken in cross examination. She made early complaint and her account was internally consistent. Even after making all possible allowances for the fact that English is not Dr. Rivera's native language the Tribunal much prefers Patient A's evidence to that of Dr. Rivera wherever there is inconsistency between them and in particular is satisfied to the requisite standard that Dr. Rivera did use his ungloved hand to part Patient A's labia on 18 February 2000. The Tribunal is also satisfied to such standard that at the conclusion of his examination of Patient A Dr. Rivera took her hand and squeezed it approximately three or four times which was inappropriate in the circumstances.

The Tribunal is also satisfied that, quite apart from the use of his ungloved hand, the examination conducted by Dr. Rivera was not clinically indicated and appropriate. In that regard the Tribunal prefers the evidence of Dr. Christie (T. 160.05 and exhibit 1.12) , Professor Saunders (exhibit 1.5), and Dr. Walsh (exhibit A.6) to that of Dr. Bourke who considered that some form of examination was required (exhibit 1.9).

As to consent - it is clear that Dr. Rivera should have obtained the consent of Patient A to his examination of her vagina prior to such examination being conducted on 18 September 2000. Further it is highly desirable that such consent should have been given in express words. However a patient can indicate consent to an examination by means other than express words or written communication. Having regard to the fact that Patient A knew from the time that Dr. Rivera asked her to lift her legs that he was intending to conduct a vaginal examination and that she was prepared to consent to such examination at that time (see her evidence T. 33.25 to 34.10), the Tribunal considers that, although it accepts Patient A never gave express consent to the vaginal examination, consent for such examination was impliedly given in all the circumstances.

In relation to Dr. Rivera's washing his hands after his examination of Patient A - the Tribunal accepts the patient's evidence that Dr. Rivera did not wash his hands in the basin before the examination or before leaving the room after the examination. Furthermore the Tribunal is satisfied to the requisite standard that Dr. Rivera did not wash his hands in the nurses' therapeutic rooms after having examined Patient A. It has come to that determination because Dr. Rivera told the meeting on 24 February 2000 with Ms. Milne and Drs. Robertson and Finckh that he had not washed his hands and subsequently did not tell any of those persons that he had in fact washed his hands when he remembered doing so two or three days after such meeting.

Dr. Rivera conceded that no nurse or other chaperone was present at the time of the relevant examination of Patient A and that he had made no notes of such examination or of his findings thereon.

In summary therefore the Tribunal is satisfied to the relevant standard of all the matters specified in paragraphs 1 and 2 of the particulars of the complaint. However in relation to paragraph 1 (b) the Tribunal is further satisfied that although the Patient did not give her express verbal consent to the relevant examination her consent to it was impliedly given.

Determination of the Facts re Conduct at Wagga Wagga Base Hospital on 17 September 2000.

Clearly there is an irreconcilable conflict between the evidence of Patient B and the evidence of Dr. Rivera as to the events which occurred on 17 September 2000 at Wagga Wagga Base Hospital since Dr. Rivera denies being at the hospital on that date and carrying out the examination referred to by Patient B.

The time sheets of the Wagga Wagga Base Hospital for 16 and 17 September 2000 (exhibit 3.16) reveal that Dr. Rivera made no claim for remuneration for working at the hospital on those dates. The time sheets for Dr. Queenie Lo for 16 and 17 September 2000 (exhibit 3.20) show that Dr. Lo claimed remuneration for working 8.30 am to 11.30 pm on 16 September 2000 and for working 8.30 am to 4 .00 pm on 17 September 2000. Whilst both those sets of time sheets were prepared on approximately 19 September 2000 they do support the evidence of Dr. Rivera that he did not work at the hospital on 17 September 2000 and that he swapped his shifts on both 16 and 17 September 2000 with Dr. Lo.

Dr. Rivera's evidence in that regard was also supported by that of his wife who claimed that he did not work on 17 September 2000 but spent the day with her and their children. It was put to Patient B in cross examination that Dr. Rivera was not at the hospital on 17 September 2000 (T. 62.15) but she asserted that he was in fact at the hospital on that day and that she had seen him on at least two occasions during the day (T. 61.05 to 40). She was also definite that she was not mistaken as to the date of the relevant examination (T. 62.30).

It is possible that Dr. Rivera whose residence was only two or three kilometres from the hospital ( see Dr. Curtis T. 117.30) could have attended at the hospital especially after Dr. Lo finished work at 4.00pm even though he was not on duty.

However having regard to the time sheets the Tribunal is not satisfied to the requisite standard that Dr. Rivera examined Patient B on 17 September 2000 at the Wagga Wagga Base Hospital.

Although the particulars in paragraph 3 of the complaint refer to "on or about 17 September 2000" Patient B was definite that the relevant examination took place on 17 September 2000. The Tribunal is concerned that despite her denial Patient B may simply be mistaken as to the date but as there was no other evidence of the examination and Patient B was quite certain that there was no possibility that she was mistaken as to the date the Tribunal cannot be satisfied to the relevant standard that the particulars of complaint with respect to events alleged to have occurred on or about 17 September 2000 have been made out.

Accordingly the Tribunal is not satisfied of the matters set forth in paragraph 3 of the particulars of complaint.

Determination of the Facts re Conduct at Wagga Wagga Base Hospital on 18 September 2000.

There is also a clear conflict between the evidence of Patient B and the evidence of Dr. Rivera as to the precisely what Dr. Rivera did when examining Patient B on 18 September 2000.

It was submitted on behalf of Dr. Rivera that Patient B's general credibility was adversely affected by the body of evidence showing that, contrary to her evidence, Dr. Rivera did not work at the hospital on 17 September 2000 and that if the Tribunal was not comfortably satisfied about her credibility in relation to the events alleged to have taken place on 17 September 2000 it would not accept her evidence as to the events which allegedly took place on 18 September 2000.

The Tribunal accepts that having made a finding contrary to the evidence of Patient B in relation to the events alleged to have taken place on 17 September 2000 it must take that finding into account and the reasons therefor in determining whether it is satisfied to the requisite standard that the events which she alleges took place on 18 September 2000 did in fact occur.

However taking that adverse finding as to the credit of Patient B into account the Tribunal is nevertheless satisfied that the events which she claimed took place on 18 September 2000 did in fact take place despite the denial thereof by Dr. Rivera.

The Tribunal has come to that determination for the following reasons.

First, leaving aside the issue of whether Dr. Rivera worked at the hospital on 17 September 2000, the Tribunal was most impressed by Patient B's evidence. She was very matter of fact in her description of the relevant events and was not shaken in cross examination. The Tribunal regarded her as a mature woman honestly and accurately recounting what had taken place. Although she did not complain in detail to the nursing staff or indeed at all to the social worker or Dr. Gamble to or on the day of her discharge she did complain the following day to her local general medical practitioner and her successive accounts of the relevant events have been consistent in substance. Had it not been for her evidence that Dr. Rivera examined her on 17 September 2000 at the hospital when it appears he was not working on that date the Tribunal would have had no reservations whatsoever in accepting her evidence.

Furthermore, even after making allowance for possible language difficulties, the Tribunal was unimpressed by the evidence of Dr. Rivera. Thus for example he gave evidence in cross examination (T. 239.20 to 30) that paragraph 19 of his statement in relation to the circumstances of his swapping his shift with Dr. Lo was incorrect despite having confirmed in his evidence in chief that his statement was true and accurate (T.197.05 to 20).

Secondly, the alleged acts of Dr. Rivera on 17 September 2000 were very minor when compared with those alleged to have taken place on 18 September 2000. Indeed Patient B herself did not consider at the time that what Dr. Rivera had done on 17 September 2000 was improper (T.69.20 to 30) . It seems plain to the Tribunal that it was only after the events of 18 September 2000 that Patient B realised Dr. Rivera's actions on 17 September might not have been proper. In those circumstances the Tribunal considers that whilst Patient B may have been mistaken in relation to the events alleged to have occurred on 17 September 2000 she is not likely to be in error in her account of the much more serious events of 18 September 2000.

Thirdly, in Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 Mason P. (with whom Priestley and Powell JJA agreed) after pointing out certain differences between the Queensland and New South Wales legislation in relation to hearing complaints against medical practitioners said at page 91:-­

"This is a significant point of distinction. It suggests that it would be prudent for the judge presiding over a particular tribunal to consider directing his or her fellow members that they should exercise particular care to consider the evidence on individual charges separately, unless satisfied that there was no collaboration between the several patients and that the peculiar features of one incident (if proved) lends compelling weight to the proof of another." It was common ground between the parties in the present case that there was no question of any collaboration between Patient A and Patient B. Further the Tribunal considers that the peculiar features of the St. Vincent's Hospital incident on 18 February 2000 which it is satisfied have been proved lend compelling weight to accepting the evidence of Patient B in relation to the events which allegedly occurred at Wagga Wagga Base Hospital on 18 September 2000. Those peculiar features are:-­ a. Patient A was a middle aged mature woman in hospital for a non gynaecological problem - similarly Patient B was a mature middle aged woman in hospital for a non gynaecological problem; b. The examination of Patient A occurred in the context of menopausal issues. In this regard the issue of hormone replacement therapy and vaginal dryness was raised with respect to Patient A - similarly Patient B alleges that Dr. Rivera asked her whether she had any itching or burning in the genital area ( T.49 16 to 20). Further although Dr. Rivera denied discussing hormone replacement therapy with Patient B (T.318 46 to 55), he admitted he was present when it was discussed on Patient B's admission to hospital ( T. 318.18 to 35 and see also Patient B at T.86.30 to 87.55); c. The relevant improper conduct in relation to Patient A took place in the course of an examination by Dr. Rivera after he had attended and examined the patient many times over the previous few days and apparently gained the confidence of such patient - similarly the improper conduct in relation to Patient B occurred in the course of an examination of such patient after Dr. Rivera had attended the patient many times over the previous few days and apparently gained her confidence; d. No express oral consent was obtained by Dr. Rivera to the conducting of the examination of Patient A prior to its commencement - similarly no express prior oral consent was obtained prior to the commencement of the examination of Patient B; e. Dr. Rivera touched the genitalia of Patient A with an ungloved hand - similarly he is alleged to have touched Patient B's genitalia with an ungloved hand; f. Dr. Rivera made no note whatsoever of his examination of Patient A or his findings thereon - similarly Dr. Rivera made no note whatsoever of his examination of Patient B or his findings on such examination; and g. Despite hospital policy there was no nurse or chaperone present when Patient A was examined by Dr. Rivera and it seems no attempt had been made prior to the examination to secure the presence of a nurse or chaperone - similarly there was no nurse or chaperone present when Patient B was examined and again no attempt seems to have been made to secure the services of a nurse or chaperone for such examination. Furthermore Mason P in Zaidi's Case went on at page 92 to expressly adopt and apply the remarks of Mackenzie J in Purnell v Medical Board of Queeensland (15 August 1997 - unreported) as follows: ­ "This is a case where identification of the person who allegedly did an act is not in dispute. The issue is whether the act complained of was done. Where this is the issue proof of the commission of an act on a particular person may become more certain if other witnesses testify that a similar act has been committed on them. Provided the complaints of the similar acts are made by witnesses who are truly independent of the complainant whose testimony is in issue, in the sense that collaboration between the complainant and the other witnesses and the possibility that the other witnesses' complaints are the product of suggestibility following the witnesses becoming aware of the complainant's complaint can be ruled out, it is unlikely that the various independent accounts are a coincidence. There may be some cases where other possible explanations consistent with innocence may need consideration, as in the present case where the effects of medication upon perception is an issue. If it can be excluded, the basic proposition stated above operates. The strength of the inference will depend on the facts of the particular case. The number of complaints is not of itself critical. One similar allegation containing the same peculiar feature or features may have considerable weight in supporting a complainant's evidence. On the other hand where acts alleged do not contain any particularly unusual features but are similar, the fact that there are a number of allegations from different persons may assist in drawing an inference that the act with which the court or tribunal is concerned occurred to the required standard of proof. There is no doubt a spectrum of circumstances which require consideration on a case by case basis between those two positions.

Ultimately the question is whether the inference that the act complained of was committed upon the complainant can be properly drawn having due regard to the standard of proof applicable to the kind of case before the court or tribunal. Where credibility of a complainant's evidence is in issue the fact that complaints of similar acts have been made by other persons can provide strong support of the complainant's evidence in the absence of any factors diminishing the strength of the inference logically available from the fact that they were made independently of and unaffected by the complainant's own account. "

Thus even if, contrary to the Tribunal's view, the facts of the events at St. Vincent's Hospital are not of a sufficiently peculiar nature to lend compelling weight to the proof of the events alleged to have occurred at Wagga Wagga Base Hospital on 18 September 2000, the two sets of allegations from totally unrelated persons have sufficient similarities, in the Tribunal's judgment, to assist the Tribunal in drawing the inference to the requisite standard that the acts alleged to have occurred on 18 September 2000 did in fact occur.

In coming to its determination that the events alleged to have occurred on 18 September 2000 did in fact occur notwithstanding Dr. Rivera's denial of them the Tribunal has not overlooked two further submissions made on behalf of Dr. Rivera.

First, it was submitted that there was a serious issue of identification of Dr. Rivera as the perpetrator of the acts in relation to patient B at Wagga Wagga Base Hospital and thus even if the Tribunal were satisfied that the alleged acts were committed against Patient B the Tribunal would not be satisfied that it was Dr. Rivera as opposed to some other intern who did them. It is true that Patient B did not identify Dr. Rivera as the perpetrator by name nor did she identify Dr. Rivera in person. However when she first spoke to Dr. Curtis on 22 September 2000 concerning her complaint Patient B did identify the perpetrator as the doctor who usually came with the surgical registrar to see her ( T. 64.50 to 65.35) and Dr. Curtis was thus able to identify Dr. Rivera. Patient B also believed that no other junior male doctor treated her whilst she was in ward 3 room 13 where the alleged acts took place (T62.54 to 63.16). Furthermore Dr. Rivera conceded that he saw Patient B at approximately 4.30 pm on 18 September 2000 (exhibit A.l paragraph 21 ) and was able to give detailed evidence as to the examination he conducted of her at that time. In those circumstances the Tribunal does not consider there is a issue of identification in this case especially in relation to the events which allegedly took place on 18 September 2000 and is satisfied to the requisite standard that the acts which Patient B claimed were performed on her on 18 September 2000 were committed by Dr. Rivera.

Secondly, the nurse who allegedly interrupted Dr. Rivera's examination of Patient B on 17 September 2000 and to whom Patient B said on 18 September 2000 that she didn't consider the actions of the doctor who examined her to be above board was not called to give evidence. It was submitted on behalf of Dr. Rivera that the failure to call such nurse gave rise to a Jones v Dunkel type inference that nothing such nurse could have said in evidence would have assisted the case for the complainant. Mr. Sloane the then general manager of the Wagga Wagga Base Hospital and Dr. Curtis who was the director of clinical services of the Greater Murray Area Health Service gave evidence that enquiries were made to identify the relevant nurse but those enquiries were unsuccessful and she was unable to be identified ( T.142.35). That of course explains why the nurse was not called to give evidence and it thus seems to the Tribunal that no Jones v Dunkel type inference should be drawn. However even if such an inference is drawn the Tribunal considers that such inference taken in combination with the rest of the evidence would not cause it to come to any different determination.

Thus for the forgoing reasons the Tribunal accepts the evidence of Patient B as to the events which she alleges occurred on 18 September 2000 and in particular is satisfied to the relevant standard that Dr. Rivera asked patient B to remove her underpants, placed his ungloved finger on her anus and another ungloved finger beside her clitoris and rubbed his ungloved finger beside her clitoris.

Turning to the particulars alleged in paragraph 4 of the complaint:-

As to subparagraph a - the Tribunal is satisfied to the requisite standard that Dr. Rivera asked Patient B to remove her underpants and accepts Dr. Rivera's own evidence that there was no justification for such a request (T 332.37 to 42). As to sub paragraph b - the Tribunal is satisfied to the requisite standard that Dr. Rivera visually inspected Patient B's genital area without proper and clinical indications for doing so. As to sub paragraph c - the Tribunal is satisfied to the requisite standard that Dr. Rivera inappropriately rubbed Patient B's anus and clitoris. As to subparagraph d - the Tribunal is not satisfied to the requisite standard that Dr. Rivera inappropriately massaged Patient B's legs as it considers that what Patient B described as massage might well have been compression and palpation which would have been justified in the circumstances. As to subparagraph e - the Tribunal is satisfied to the requisite standard that Dr. Rivera failed to adhere to standard infection control requirements in the conduct of his examination of Patient B by failing to wear gloves but it is not satisfied that he failed to wash his hands immediately before and after the examination as there was no evidence of his failing to do so since Patient B was not in a position to observe his actions in relation to washing his hands either before or after the examination finished.

In relation to Paragraph 5 of the particulars of the complaint - the Tribunal is satisfied to the requisite standard that Dr. Rivera failed to make a medical record of his examination of Patient B on 18 September 2000. In coming to that determination the Tribunal accepts Dr. Rivera's own evidence (T. 329.45). The Tribunal is also satisfied that Dr Rivera failed to make entries in Patient B's notes of other examinations if there were no positive findings (see paragraph A5 on page 6 of Dr. Rivera's statement exhibit A.l).

Determination as to Whether the Facts Found Proved Constitute Unsatisfactory Professional Conduct and / or Professional Misconduct.

It was conceded by senior counsel for Dr. Rivera that if the allegations relating to Dr. Rivera's conduct at Wagga Wagga Base Hospital on 18 September 2000 were found to be proved to the requisite standard such conduct would amount to professional misconduct. The Tribunal considers that such concession was correctly made as it is satisfied that the actions of Dr. Rivera on 18 September 2000 in relation to Patient B which it has found proved constitute improper and unethical conduct relating to the practice of medicine and thus fall within the concept of "unsatisfactory professional conduct" specified in Section 36 (1) (m) of the Medical Practice Act 1992 as amended. Furthermore in the Tribunal's judgment such "unsatisfactory professional conduct" was of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of his name from the Register of Medical Practitioners kept under the Act. It therefore falls within the meaning of "professional misconduct" as defined by section 37 of the Medical Practice Act. (see HCC v Litchfield (1997) 41 NSWLR 630 esp. at 638 and Qidwai v Brown [1984] 1NSWLR 100 esp. at 104- 105).

In relation to the alleged acts of Dr. Rivera at St. Vincent's Hospital in February 2000 referred to in paragraphs l and 2 of the particulars of complaint it was submitted on behalf of Dr. Rivera that even if the Tribunal were to be satisfied that such allegations had been proved to the requisite standard Dr. Rivera's acts did not amount to either unsatisfactory professional conduct or professional misconduct within the meaning of sections 36 and 37 of the Medical Practice Act 1992 as amended. In support of such submission it was correctly pointed out that not all errors of judgment will amount to lack of adequate knowledge, skill, judgment or care, by the relevant practitioner in the practice of medicine (see Daskalopoulos v HCC [2002] NSWCA 200 esp. per Hodgson JA at par.59).

The factual findings made by the Tribunal are that on 18 February 2000 Dr. Rivera, without obtaining the patient's express verbal consent and without having arranged for a nurse to be present, visually examined a female patient's vagina and parted her labia using an ungloved hand, that having done so he did not immediately wash his hands but. inappropriately held and squeezed the patient's hand approximately 3 or 4 times, and that he made no note or other medical record of such examination. Furthermore, as previously stated, the Tribunal is satisfied that that there was no proper and sufficient clinical indication for such an examination.

When such conduct is viewed in its entirety the Tribunal is satisfied that it both demonstrates a lack of adequate knowledge, skill, judgment and care on the part of Dr. Rivera and amounts to improper and unethical conduct relating to the practice of medicine and that it constitutes "unsatisfactory professional conduct" within the meaning of section 36 of the Act.

In coming to that determination the Tribunal prefers the views of Dr. Christie (esp. at T.174.25 to 44) and of Dr. Walsh (especially at T. 286.35- 39) to the views of Professor Saunders. In particular the Tribunal is satisfied that for a medical practitioner in a hospital to have deliberately touched a female patient's genitalia without using gloves was grossly improper and unethical especially without a nurse being present. Furthermore the gravity of such misconduct was exacerbated by Dr. Rivera then failing to wash his hands immediately after such touching. In a hospital environment where cross infection is a constant concern such failure is a matter of considerable importance.

The next matter to be determined is whether Dr. Rivera's conduct on 18 February 2000 amounted to "professional misconduct" within the meaning of section 37 of the Act.

In order to constitute professional misconduct within the meaning of section 37 the conduct of the practitioner concerned must be unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner's name from the Register.

When considering this issue the Tribunal has been very conscious that despite Dr. Rivera's overseas experience he had been working as a medical practitioner for only one month at the time of the relevant conduct. Moreover the Tribunal has also had regard to the fact that the authorities at St. Vincent's Hospital, whilst clearly regarding Dr. Rivera's acts as a serious breach of appropriate standards, decided to warn Dr. Rivera against repetition of his actions and to take no other disciplinary action.

In Litchfield's Case the Court of Appeal pointed out at page 638 that the "gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards" .

The Court went on to say also at page 638:-­ "Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe, and expect their colleagues to observe."

Viewing the conduct of Dr. Rivera on 18 February 2000 overall and applying what was said by the Court of Appeal in Litchfield the Tribunal considers that such conduct represented a gross departure from proper standards and does constitute unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension of Dr. Rivera from practising medicine or his removal from the Register.

When determining the appropriate orders to be made the primary consideration for the Tribunal is the protection of the public. Such protection itself involves a consideration of the gravity of the misconduct, the likelihood of Dr. Rivera repeating his misconduct and the need to deter other medical practitioners from engaging in similar misconduct or, as the latter is sometimes expressed, the need to maintain the standards of the medical profession and public confidence in the profession.

The Tribunal considers that the misconduct in the present case was very grave especially in relation to the Dr. Rivera's actions on 18 September 2000 at Wagga Wagga Base Hospital. It needs to be remembered that such misconduct took place after Dr. Rivera had received the warnings at St. Vincent's Hospital in February 2000 referred to earlier in these Reasons for Determination and that his actions on 18 September were in breach of those warnings.

Had Dr. Rivera's actions of 18 February 2000 stood alone then despite the gravity of his misconduct on that date there would have been much to have been said for adopting a more lenient attitude, because of his lack of Australian experience. That indeed was the attitude taken by the authorities at St. Vincent's Hospital.

However having regard to the gravity of the misconduct on 18 February 2000 and the further even more serious misconduct committed on 18 September 2000 Tribunal considers that the protection of the public requires the removal of Dr. Rivera's name from the Register.

The Tribunal has also considered whether it should make an order pursuant to section 64 (3) of the Medical Practice Act that no application for review of the proposed orders be made until after a specified time. However the Tribunal notes that Dr. Rivera has not completed the period of supervised training required for him to be unconditionally registered to practise medicine and that in fact he has not been practising medicine since the end of September 2000. In those circumstances the Tribunal does not consider it appropriate to make an order pursuant to sectio 64 (3) and declines to do so.

There were three major factual disputes which required determination in these proceedings. First, as to the events which allegedly occurred on 18 February 2000, secondly as to the events which allegedly occurred on 17 September 2000 and thirdly as to the events which occurred on 18 September 2000. The Tribunal has found in favour of the complainant in relation to the first and third of those factual disputes and has found in favour of Dr. Rivera in relation to the second factual dispute. The Tribunal considers that, whilst in proceedings of this nature costs usually follow the event, it would be unjust for Dr. Rivera to be required to pay any costs to the complainant in respect of the second factual dispute and that it would also be unjust for him to have to bear his own costs in relation to that aspect of the matter.

Approximately one third of the hearing was spent in relation to the second factual dispute and accordingly the Tribunal considers that the appropriate orders for costs that do most justice between the parties are that Dr. Rivera should be required to pay two thirds of the complainant's costs of the proceedings and that the complainant should be required to pay one third of Dr. Rivera's costs of the proceedings.

For the foregoing reasons the Tribunal makes the following findings and orders:-­ 1. That the complaint that Dr. Darwin Rivera has been guilty of professional misconduct is proved; 2. That the name of Dr. Darwin Rivera be removed from the Register of Medical Practitioners kept pursuant to the Medical Practice Act 1992 as amended; 3. That Dr. Darwin Rivera pay two thirds of the costs of the complainant of these proceedings; and 4. That the Health Care Complaints Commission pay one third of the costs of Dr. Darwin Rivera of these proceedings.

Signed ------------------------ Judge W. H. Knight Deputy Chairperson

Signed -------------------------------- Professor W.E. Glover AO Member

Signed -------------------------------- Dr. Saw-Hooi Toh Member

Signed ------------------------ Mr. D. Jackett Member

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.